R v Chris Lentini [2020] NSWDC 132 | Case summary

Agreed facts

Mr Pullen was born on 12 June 1998 and was 20 years of age when the incident occurred.
The Offender was the holder of New South Wales "C" class learner's licence. He had been disqualified from driving between the period 16 October 2013 and 15 October 2021.
At about 5:33pm on 29 January 2019, the Offender and his friend Brianna Van-Beers were inside a blue Mitsubishi hatchback car carrying the registration ending with the letters "RU". The car was rented under the name of Ms Van-Beers.
At the time, the weather was fine and sunny, the traffic was light, and the roadway was in a dry condition. Southcreek Road has a single lane in each direction, with the opposing traffic separated by a single broken white painted line.
The Offender was sitting in the driver's seat of the vehicle and Ms Van-Beers was in the front passenger seat. The car was parked next to the kerb on Southcreek Road approximately 40 metres east of an intersection with Inman Road. The Offender had been waiting for a friend who was working in the vicinity. The Offender's friend came by the Offender's car to give him some money before leaving.
Mr Pullen was riding a black Honda motorcycle CBR500 bearing a registration number ending "64". Mr Pullen had passed the intersection of Inman Road and was travelling east along Southcreek Road.
At about 5.35pm the Offender drove his Mitsubishi car away from the kerbside gutter. The Offender failed to adequately assess his surroundings before merging, and did not give way to Mr Pullen's motorcycle as he merged right into the driving lane. The Offender's vehicle collided with Mr Pullen's motorcycle causing Mr Pullen to be ejected from his seat and for the motorcycle to be thrown towards the opposite westbound driving lane. The impact resulted in extensive damage to the driver's side of the Offender's vehicle, consisting of buckling, indentation and scrape marks along the entire panel of the door.
Mr Pullen was unable to regain control of his motorcycle and collided heavily with a white Toyota Camry, which was travelling in the opposite direction in the westbound lane. The initial and resulting collisions were recorded by dash cam footage from the white Toyota Camry.
At this point in the Statement of Agreed Facts are 4 photographs taken from the dash cam footage of the white Toyota Camry depicting the sequence of events just described.
Mr Pullen received serious injuries amounting to grievous bodily harm. Mr Pullen was conveyed to Royal North Shore Hospital where he underwent surgery. He sustained the following injuries: 1. a grade 3b multi ligament knee injury requiring reconstructive surgery after discharge (Mr Pullen underwent 4 operations including a skin graft); 2. a grade 2 splenic laceration (spleen laceration); 3. suspected segment 2 intrahepatic hematoma (traumatic lesions to the liver); 4. moderate volume haemoperitoneum (moderate internal bleeding); 5. fracture to his right rib; 6. closed fracture of the acromion of the scapula (shoulder fracture); 7. closed fracture of the thoracic vertebra and lumbar vertebra (spinal fractures); 8. a small left-sided pneumothorax (collapsed lung); 9. multiple grazes and friction burns over his legs; 10. obvious deformity to his left shin (open deep to the bone); 11. a deep laceration to his left ankle and right shin.
After the collision, Mr Lentini continued to drive past the white Toyota Camry and turn right into the National Storage carpark area located at 93-99 Southcreek Road. Mr Lentini parked the Mitsubishi in the carpark, removed his seatbelt and exited the driver's seat. He then left the vehicle and returned to the collision scene.
CCTV cameras located at the National Storage premises captured the Offender walking back to the scene of the collision on 2 separate occasions. He was seen to be on his mobile telephone. The Offender's friend, who was present earlier, walked up to the Offender's car and had a conversation with the Offender.
The Offender abandoned his vehicle and left his friend, Ms Van-Beers, at the National Storage carpark. He left the scene without assisting the injured victim and made no attempts to contact police or emergency services in relation to reporting or providing information about the collision.
At about 5:37pm the CCTV footage captured Mr Lentini walking away from the carpark and the collision scene without waiting to speak with police. About a minute later, Mr Lentini is seen to walk down the drive to the location 93-99 Southcreek Road and hide behind a white campervan in a carpark at that location.
On Thursday 31 January 2019, Mr Lentini was arrested and conveyed to Manly police station where he participated in an electronically recorded interview. He told police that a male unknown to him had driven the car and walked away from the scene after pulling into the driveway of the National Storage Complex. The Offender stated that he was on the phone with "000" when he was depicted speaking on his mobile phone at the National Storage premises. Call records, however, confirm that no attempts were made by the Offender to call any emergency services.

Facts in dispute

The Statement of Agreed Facts contains the following in paragraphs 13 and 14: "13. Van-Beers told police that the Offender had exited the vehicle and returned to the collision scene: "I know he walked up there, cause he looked at the person as well, got on his phone and then everybody came across and then he walked back and then his friend said something about being on bail or parole, I can't remember the word and then he goes 'I'm going, you were the driver. Deal with it.'" 14. Continued: The Offender said to Van-Beers 'you've come to the scene, you were the driver.' He rummaged around the side door of the car to grab his belongings and fled the scene."
This sentence hearing came before me in the context of a busy list on 12 March 2020 when I was sitting both as Civil List Judge and also assisting in crime. As I had not had the chance to familiarise myself with all of the facts prior to commencing the Sentence Hearing, I took the opportunity to ask the Offender a number of questions after he was called by his legal representative to give evidence. In the course of seeking to clarify the evidence, the following exchange occurred: "Q. In fact, didn't you tell somebody who was travelling with you in your vehicle that - was it a woman? A. Yeah. Q. That she was the driver? A. No I didn't do that. No."
I then raised with the legal representative of the Offender this discrepancy between the sworn evidence of the Offender and the Statement of Agreed Facts. I was told that although the document had not been signed by the Offender, it had been signed on his behalf.
On further questioning, the Offender denied that he told Ms Van-Beers that she was the driver.
In the course of discussion between the bench and bar, it became apparent that the Statement of Agreed Facts were negotiated between the Parties prior to the plea being entered in December 2019.
Ms Barnsley, appearing for the Offender, confirmed that she negotiated the Agreed Facts on behalf of her client based upon instructions.
The conflict then arose between the Offender and his solicitor. The Offender asserting that he never provided those instructions and his solicitor asserting the contrary.
The hearing was adjourned until 2pm to permit Ms Barnsley to confer with her client. At 2pm the Court was informed by Ms Barnsley that her client adhered to his evidence to the effect that he denied speaking with Ms Van-Beers after the accident. After further discussion between the bench and the bar, the matter was adjourned for a disputed facts hearing on 1 April 2020 at 2pm.
On 1 April 2020, Ms Van-Beers was called by the Crown to give evidence.
The effect of the evidence of Ms Van-Beers was to establish the facts disputed contained in paragraphs 13 and 14 of the Statement of Agreed Facts. Her evidence was corroborated by an interview that she participated in with the police on 30 January 2019 (MFI 2). It was also supported by the fact that Ms Barnsley assured the Court that the contents of paragraphs 13 and 14 had been agreed upon instructions.
Ms Van-Beers presented as a truthful and reliable witness. In cross-examination she was unshaken. I have no difficulty in accepting the evidence of Ms Van-Beers over the evidence of Mr Lentini. This approach to the evidence is further supported by the fact, again, that I was assured by Ms Barnsley that the Statement of Agreed Facts was agreed to upon instructions.
Accordingly, in relation to the facts disputed, I will proceed to sentence on the basis that the contents of paragraphs 13 and 14 of the Statement of Agreed Facts are true and accurate.
I have been provided with a number of photographs of the vehicle driven by Mr Lentini which clearly depicted the damage done to the driver's side of that vehicle. It is plain that the collision was one of some force, causing extended indentation into the side of that vehicle and the displacement of the rear view mirror.
I have also reviewed a photograph of the white Toyota Camry, again showing extensive damage to the front of the vehicle and to its passenger side.
I have a photograph of the Honda motorcycle ridden by Mr Pullen, although it is difficult to discern damage. It appears to be covered in dirt and/or dust, which may have resulted from the vehicle travelling upon the roadway after the initial impact. It is not necessary for that matter to be determined.
The Offender has a relatively lengthy criminal record, mostly for drug offences, but also including driving offences. Attached to these Remarks is a table (Annexure A) which sets out the Offender's criminal history.
As is apparent from Annexure A, there are some 15 driving-related charges, including multiple convictions for driving whilst disqualified.
Also included in the Crown bundle (Exhibit A, Tab H) is the Offender's Traffic Record Report. I do not intend to set it out in any detail, except to note that on 27 June 2014 he was declared a Habitual Offender.
The documents produced by Corrective Services indicate 8 infringements in the period 11 August 2011 - 23 August 2017.
At the Sentence Hearing on 12 March 2020, Mr Pullen read out a Victim Impact Statement dated 2 March 2020. A copy of the statement is included in the Crown Bundle (Exhibit A, Tab J). Having already referred to the injuries, above, I do not intend to set out the Victim Impact Statement in any great detail, save to confirm that I have had regard to it to ensure that the sentence to be imposed upon the Offender provides recognition of the harm done to Mr Pullen. It is also apparent that the effects upon him have gone far beyond the physical injuries which he suffered.
Further insight into the Offender is provided by the Breach of Parole Report (Exhibit A, Tab K). The Offender was released on parole on 10 August 2018, subject to conditions. The first condition was the he must not commit any offence. That condition was breached by reason of the offending, the subject of this sentence.
Another condition was that he must report to a Community Corrections officer at the times and places directed by the officer. It is apparent from the Breach Report that he failed to attend 2 appointments with the Community Corrections officers without excuse. He was directed to commence counselling by 20 January 2019 to address his drug use. On 23 January 2019 the Offender attended a scheduled appointment with Community Corrections and disclosed that he had not followed up on counselling because "he didn't want to". He also disclosed continued use of methylamphetamine during this appointment.
His criminogenic factors were identified as being drug use, namely methylamphetamine, and his antisocial peer associates. His attitude towards supervision on parole was assessed as being poor, and it was noted that he demonstrated poor insight into his offending behaviour and a disregard for his parole order.
Even if one were to be considered, his conduct whilst on parole would question the viability of any community-based sentence.
A Sentencing Assessment Report dated 26 February 2020 was created by Alexandra Faith of Bathurst Community Corrections. This was in preparation for the first date before the Court for sentencing on 12 March 2020. The Offender himself attributed his antisocial behaviour to his ongoing substance abuse issues and negative peer associations.
In what appears to be an extraordinary statement entirely unsupported by any evidence, the following appears under the heading 'Attitudes' on page 2 of the report: "Mr Lentini attributed partial blame to the victim, and stated that the motorbike was speeding immediately prior to the commission of the current offences."
As a further example of Mr Lentini's antisocial behaviour, the following also appears under the heading 'Attitudes': "Despite the acknowledging and awareness of his licence disqualifications, Mr Lentini reported that he regularly operated a motor vehicle prior to the commission of the current offence."
Further, in a statement that can only be considered untruthful and an attempt to minimise his culpability, the following appears in the report: "While Mr Lentini argued that he rendered assistance to the victim, he conceded that he left the scene due to the perceived repercussion to his current parole order."
At no stage did the Offender render assistance to Mr Pullen.
Under the heading 'Insight Into Impact Of Offending', amongst one other matter, the Offender demonstrated self-concern for financial compensation that he could be required to pay in relation to the commission of the current offences. In this regard, I note that after the matter was first raised by the Court with the Crown, the question of compensation to Mr Pullen was explored and the Offender has consented to an order under the Victims Rights and Support Act 2013 NSW.
He was assessed as a medium risk of reoffending.
The only other evidence in the Sentence Hearing was a letter from Wendy Lentini, dated 10 March 2020. Mrs Lentini is the mother of the Offender. Mrs Lentini provided some detail as to her son's upbringing, which generally was unremarkable. He completed school and worked in various forms of employment. A glaring omission from her letter is any reference to her son's drug dependence, which seems to be the driving force behind his offending. She also failed to refer to his criminal history, which is extensive and in respect of which one would expect she would have had acknowledged. I find the letter from Mrs Lentini generally unconvincing, save for the fact that it is plain that the Offender came from a stable, supportive family.
In addresses, there was substantial consensus between the Parties as to what findings the Court ought to make in terms of statutory aggravating and/or mitigating factors, as well as other matters.
The following matters were agreed, permitting me, without controversy, to make findings as follows: 1. the offending was aggravated by the fact that the Offender had a record of previous convictions; 2. the offending was further aggravated by the fact that it occurred whilst the Offender was on conditional liberty, that is parole; 3. the evidence does not demonstrate remorse, certainly in the statutory sense, and I decline to make a finding of mitigation in that regard. I note that ultimately, Ms Barnsley, for the Offender, did not make a submission against a finding of no remorse; 4. the Offending is mitigated by the fact that the Offender pleaded guilty, albeit in the District Court. That would ordinarily entitle him to a discount of 10%. Given the fact that a disputed facts hearing was necessitated, seemingly because of the Offender's change of instructions, I find that a reduction in sentence of 5% is appropriate. I reject Ms Barnsley's submission that the usual discount of 10% should not be reduced; 5. in relation to the offending generally, it was agreed and I find that the objective gravity fell at about the mid-range. That finding applies in respect of Count 1 (although I note that the Crown originally submitted on this count that it was the upper end of mid-range), together with the two related offences, Counts 3 and 4; 6. the Offender is not entitled to a finding of good character or any leniency which might flow from that finding; 7. the s5 threshold is crossed and no sentence other than full time imprisonment is warranted in the circumstances.
There was a dispute between the parties as to a number of matters including commencement date, risk of reoffending, and the prospects of rehabilitation. It was submitted on behalf of the Offender that the risk of reoffending would be minimised by the fact that he and his family intend to move to the Hunter Valley. It was suggested that by doing so he would be in a position to engage in positive rehabilitation.
The Crown submitted that the Offender had failed to demonstrate any interest in rehabilitation in the past, and that he would not therefore benefit from any additional time on parole.
Having regard to the Offender's conduct when on parole in 2018-19, and in particular, his refusal to participate in rehabilitation because he "didn't want to", I share the Crown's concern regarding the risk of reoffending and the prospects of rehabilitation. I find the risk of reoffending to be medium, in accordance with the Sentencing Assessment Report. I find the prospects of successful rehabilitation to be extremely guarded.
I do not consider that the Offender requires any additional time on parole in order to facilitate rehabilitation, considering his refusal to do so on the prior occasion.
On behalf of the Offender, Ms Barnsley sought a finding of special circumstances. In view of the finding I have made concerning the prospects of rehabilitation and the risk of reoffending, there is no evidentiary basis upon which the Court should exercise its discretion favourably so as to find special circumstances and reduce the non-parole period. Accordingly, I decline to find special circumstances.
It was submitted on behalf of the Offender that an aggregate sentence would be appropriate given the fact that the 3 charges for sentence arose out of the same facts. I accept that submission.
In sentencing the Offender I am mindful of the purposes for sentencing set out in s3A of the Crimes (Sentencing Procedure) Act 1999 NSW. In coming to the sentence to be imposed, I am satisfied as to the following: 1. that the sentence is adequate punishment for the offences; 2. that the sentence will deter both the Offender and others from committing similar offences; 3. that the sentence will protect the community from the Offender; 4. that the Offender will be made accountable for his actions; 5. that via the sentence, the conduct of the Offender will be denounced; 6. that the sentence provides recognition of the harm done to the victim of the crime and the community.
Given my views concerning the prospects of rehabilitation of the Offender, there is no sentence which would accommodate that purpose for sentencing. In my opinion, the need for general deterrence, denunciation and recognition of the harm done to the victim are paramount purposes for sentencing in this particular case.
In the Crown's initial written submissions (MFI 1), guidance was provided regarding applicable principles in relation to offences of this type. For example, reference was made to the decision of R v Pullen [2018] NSWCCA 264, where Harrison J stated: "The purpose of the offences under s52AB is twofold. First, it emphasises the need for drivers involved in serious motor vehicle accidents to stop and provide assistance to anyone who is injured by at least contacting emergency services. Secondly, it seeks to deter people from impeding a police investigation into an accident."
His Honour then went on to refer to the Second Reading Speech in 2005 when the offence was first introduced, at which time the Attorney-General expressed sentiments consistent with Harrison J's comments.
In sentencing the Offender, I am mindful of the comments made by Basten JA in Hoskins v R [2020] NSWCCA 18. In that case, his Honour cautioned against the distinction to be drawn between dangerous driving occasioning grievous bodily harm (s52A(3)) and the current offence of failing to stop and assist after vehicle impact causing grievous bodily harm (s52AB(2)). The latter being a "lesser offence" [16].
Prior to imposing an aggregate sentence, it is necessary to provide indicative sentences in relation to the 3 matters for sentence. The sentences for each offence, if separate sentences had been imposed instead of an aggregate sentence are, in my view, consistent with sentences in like cases. I provide the following indicative sentences: 1. For Count 1, being fail to stop and assist after vehicle impact causing grievous bodily harm, in breach of s52AB(2) of the Crimes Act, a sentence of 1 year 10 months and 24 days. This term has been reduced by a discount of 5% for the guilty plea; 2. For Count 3, being driving a motor vehicle during a disqualification period (second or subsequent offence), a sentence of 5 months and 21 days. This term has been reduced by a discount of 5% for the guilty plea; 3. For Count 4, being negligent driving occasioning grievous bodily harm (first offence), a sentence of 5 months and 21 days. This term has been reduced by a discount of 5% for the guilty plea.
Mr Lentini, you are convicted of the following offences: 1. the offence of failing to stop and assist after a vehicle impact, causing grievous bodily harm, in breach of s52AB of the Crimes Act 1900 NSW; 2. you are further convicted of the offence of driving while disqualified (second or subsequent offence) in breach of s54(1)(a) of the Road Transport Act 2013 NSW; 3. you are further convicted of the offence of negligent driving occasioning grievous bodily harm, in breach of s117(1)(b) of the Road Transport Act 2013 NSW.
In respect of those convictions, I impose an aggregate non-parole period of 1 year 7 months and 14 days, with a head sentence of 26 months.
As to the commencement date, I have backdated it to 1 month after you commenced the fixed term of imprisonment for driving a motor vehicle whilst disqualified, that is, 15 July 2019. This has been adjusted to allow for totality and concurrency.
Accordingly, the aggregate non-parole period will expire on 28 February 2021 and the head sentence will expire on 14 September 2021.
Further, in respect of Count 1, you are disqualified from driving for a period of 3 years, to commence from the end of your current period of disqualification, 15 October 2021.
In respect of Count 3, you are disqualified from driving for a period of 12 months, to commence 15 October 2021.
In respect of Count 4, you are disqualified from driving for a period of 3 years, to commence 15 October 2021.
You will not be eligible to obtain a driver's licence until 16 October 2024.
In respect of the 2 back-up offences (sequence 2, failing to stop and assist after impact causing injury), that charge is withdrawn and dismissed. In respect of sequence 5, not give particulars to injured person, that charge is also withdrawn and dismissed.
Finally, I make orders in accordance with the Short Minute of Order, signed on behalf of the parties, providing as follows: "That, pursuant to s97(1) of the Victims Rights and Support Act 2013, the sum of $7,025.64 be paid out of the property of Chris Lentini to Calvin Pullen by way of compensation for loss sustained through the offence for which the Offender has been convicted."
In making that order, I find that: 1. Mr Pullen is an aggrieved person within the meaning of s97(1)(a); and 2. the compensation represents the loss sustained by reason of the offence committed by the Offender, in accordance with s97.

R v Chris Lentini

At a glance

Court

Decision date

Source

Judgment (6 paragraphs)

Parties

Cases Cited (2)